780 F.3d 873
8th Cir.2015Background
- Clark was convicted in state court for a 2007 theft after an earlier plea-based conviction was vacated; he received an enhanced sentence as a habitual offender following a jury trial.
- At an earlier stage Clark had signed a judgment indicating a guilty plea for the 2007 offense though he never formally entered a plea; a federal court previously vacated that conviction on habeas review.
- After re-trial and conviction, Clark raised several claims on appeal; some claims were raised for the first time in his pro se brief and were not presented to the trial court.
- The North Dakota Supreme Court declined to consider those pro se claims under its discretionary "obvious error" (plain-error) standard, finding none rose to that level.
- Clark filed a federal habeas petition raising those same claims; the district court dismissed them as procedurally defaulted and certified an appeal on whether the state court's plain-error review cured the default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a state appellate court's discretionary plain-error ("obvious error") review of an unpreserved claim cures a procedural default and permits federal habeas review | Clark: North Dakota Supreme Court's plain-error consideration waived the procedural default and allows federal collateral review | State: Plain-error review is discretionary and does not satisfy the federal "cause and prejudice" standard required to excuse default | The Eighth Circuit follows Hayes and holds plain-error review by a state court does not cure a procedural default; federal habeas review barred absent cause and prejudice |
Key Cases Cited
- Hayes v. Lockhart, 766 F.2d 1247 (8th Cir. 1985) (state plain-error review does not replace cause-and-prejudice requirement for federal habeas)
- Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (panels must follow the earliest controlling intra-circuit precedent)
- Engle v. Isaac, 456 U.S. 107 (U.S. 1982) (reaffirmed cause-and-prejudice standard for procedurally defaulted claims)
- Toney v. Gammon, 79 F.3d 693 (8th Cir. 1996) (follows Hayes line: plain-error review does not cure default)
- Williams v. Armontrout, 877 F.2d 1376 (8th Cir. 1989) (earlier panel holding plain-error review may permit federal review; part of the intra-circuit split)